Whistleblower Statutes

National Survey of State Laws
COPYRIGHT 2008 Cengage Learning

22. Whistleblower Statutes

Whistleblower statutes protect employees when they find themselves in the difficult position of discovering their employer violating a law or in some way breaching the public trust. If the employer is warned of the problem but takes no action, or asks the employee to keep the situation confidential, the employee may be personally participating in a crime and may be exposed to a certain amount of personal liability. Sometimes, the right thing to do is to report the employer to the authorities (or, “blow the whistle”), but the employee may risk losing his job or position within the company. In this situation, the employee may be torn between a legal or ethical duty and perceived loyalty to his employer. “Whistleblower” issues arise in various circumstances, such as when an employee discovers that his employer that is a government contractor is overbilling the government, or when a public or private employer is discovered cutting corners on safety matters in violation of rules and regulations under state occupational health and safety acts. Other situations may involve employer practices of job discrimination, abuse of adult or juvenile patients in a health care facility, or medical malpractice.

In these situations, if an employee exposes an unsafe, illegal or unethical practice to the authorities, the employee may be the subject of punitive or retaliatory action, such as, dismissal, transfer to an undesirable job assignment, demotion, etc. Whistleblower statutes may prohibit dismissal or other retaliatory action against the employee. They may also provide for enhanced monetary awards to employees who “blow the whistle” on an unscrupulous employer.

State whistleblower statutes vary in a number of respects. Some states only provide explicit protection of public employees or those working for government contractors. Statutes also vary with respect to whom is protected or on whom the whistle may be blown. Some states extend protection to other co-workers who assist the whistleblower; some explicitly protect an employee who blows the whistle on fellow employees or another person or business entity with a business relationship with the employer.

Most states limit remedies that an employee may recover to actual damages, such as back pay or fringe benefits. In some cases, however, the employee is given a money award tied to the illegal or unethical activity exposed. In South Carolina, if the employee’s report or complaint results in a savings of public funds, s/he may recover 25% of the estimated net savings in the first year after corrective action is undertaken, up to $2,000.

It should be noted that in addition to state statutes, there are a number of federal whistleblower provisions which protect employees in much the same way. In fact, one state, Illinois, has recently taken the unusual step of repealing its whistleblower statute, apparently in deference to the federal law. There is some sound logic in this; if the state and federal laws are roughly equivalent the state can save valuable administrative resources in the repeal because it is no longer under an obligation to enforce its own law. Many federal laws include much harsher penalties for employers and greater rewards for employees who risk careers and livelihoods by reporting activity that is damaging to the public trust.

Terminating for filing a written notice of violation of safety rule under §25-5-11 (c)(4); termination for filing action against employer to recover workers’ compensation

Both

Yes, employer may not retaliate against employee or individual who tries to remedy violations of child labor chapter. (25-8-57)

Can not discharge, discipline, threaten, harass, blacklist, or in any other manner discriminate if employee disclosed information, refused to obey an illegal order, or revealed any violation of this chapter

Discharge, threaten, disqualify or otherwise discriminate for actual or expected reports to a public body or for participating in court action, investigation, hearing or inquiry held by public body on matter of public concern

Public

Civil action for punitive damages as well as other appropriately found relief; a municipality isn’t liable if it adopts an ordinance that provides similar protections

Civil fine, maximum $10,000

18.60.088, .089, .095

Can not discharge or discriminate if employee or representative files a complaint, institutes proceeding or testifies regarding a violation of safety or health standard that threatens physical harm or imminent danger

Private

Yes

May file complaint with commissioner of health and safety within 30 days of the violation to get reinstatement, back pay, and other appropriate relief

An employee who has control over personnel actions can not take reprisal against an employee for disclosure of information to public body on violation of any law or mismanagement, waste of funds, or abuse of authority

Public

May recover, under civil action, attorney’s fees, costs, back pay, general and special damages and full reinstatement or injunctive relief; may make a complaint to appropriate independent personnel board, school district governing board, or community college governing board of discharged for disclosing; excludes state university or boards of regents which have a rule or provision for protecting employees at time personnel action is taken; employee can appeal final administrative decision or get trial de novo in superior court

Civil penalty, maximum $5,000

23-425 & 23-418

Can not discharge or discriminate if employee files a complaint, institutes a proceeding, or testifies regarding a violation of health or safety statutes

Both

May file a complaint with commissioner within 30 days of violation for reinstatement, back pay, and other appropriate relief

If willful or repeated violating: maximum $7,000 for each violation; minimum $5,000 for each violation

ARKANSAS

16-123-108, 107

Can not discriminate if employee in good faith opposed an act or practice made unlawful, or testified or participated in a proceeding regarding a violation of Arkansas Civil Rights Act

Both

Can file civil action within 1 year of violation to enjoin further violations, recover compensatory and punitive damages and court and attorney’s fees

Can not initiate or administer any disciplinary action if employee disclosed information on actions of state agencies that are not in the public interest, unless employee knows information is false or discloses with disregard for truth, or disclosed information on records closed to public inspection or discloses information which is confidential under any other law

Public

If employee in state personnel system: may file a written complaint within 10 days with state personnel board to get reinstatement, back pay, restore lost service credit, records expunged, and any other additional relief as found appropriate by the board. If not or have already filed a complaint, but complaint denied: can bring civil suit to recover damages, court costs and other relief

§24-114-101, et. seq.

Can not initiate or administer any disciplinary action if employee discloses information unless employee knows information is false, or information confidential under laws

Private

Employee must make good faith effort to provide supervisor or appointing authority or member of general assembly with information to be disclosed before disclosing

Cannot discharge, discipline, or otherwise penalize because employee or his/her representative reports a violation or suspected violation or requested an investigation, hearing, or inquiry or if public employee reports to a public body concerning unethical practices, mismanagement, or abuse of authority, unless employee knows such report is false

Both

If employer violates statute, employee may, after exhausting all available administrative remedies, bring civil action within 90 days of final administrative decision or the violation for reinstatement, back pay, to reestablish benefits, court and attorney’s fees. If public, transmit facts and information to auditors of public accounts; if discriminate against can file claim within 30 days of incident with employee review board or in accordance with collective bargaining contract

Can not discharge, threaten, or otherwise discriminate because employee reported to an elected official a violation or suspected violation of law or regulation unless employee knows report is false

Public

Civil action: for injunctive relief, actual damages, or both within 90 days of alleged violation

DISTRICT OF COLUMBIA

1-615.51, et seq.

Can not discharge, suspend, demote, or other retaliatory action if employee discloses or threatens to disclose, provide information or testify or object or refuse to participate in violation of a law or rule or misuse of government resources or funds under control of government official

Public

Can file civil action within 1 year for injunction, recission, reinstatement, full fringe benefits and seniority rights, back pay and benefits, and attorney and court fees

Can not dismiss, discipline, or other adverse personnel action against employee for disclosing information of any violation or suspected violation of law or regulation or act by independent contractor which creates a substantial and specific danger to the public’s health, safety, and welfare or act of gross management malfeasance, gross public waste of funds or gross neglect of duty unless information known by employee to be false

Both

If employee of state agency: file complaint after pursuing administrative remedy or civil action within 180 days after receipt of notice of investigation termination. If local public employee: have 60 days after violation to file complaint with appropriate local government authority. Then can bring civil action within 180 days after final decision of local governmental authority, or 180 days after violation if authority hasn’t an administrative procedure by ordinance or contract. Any other person: after exhausting all available contractual or administrative remedies may bring civil action within 180 days after violation. Relief: reinstatement, back and full benefits, lost wages, reasonable costs, injunction, temporary reinstatement

Can not enforce any policy preventing disclosure of a violation, retaliate against an employee for making a complaint or disclosing information unless information disclosed with knowledge that it was false or with willful disregard for its truth or falsity

Public

Can have any prohibited action taken by employer set aside in a proceeding in court, injunction, lost wages and benefits, reinstatement, compensatory damages, and attorney’s fees if brought within one year

Can not discharge, threaten, or otherwise discriminate because employee or their representative reports or is about to report to public body a violation or suspected violation of law or rule or is requested by public body to participate in a hearing, investigation, inquiry, or court action unless employee knows report is false

Both

Civil action: injunction, actual damages or both within 2 yrs. after violation. Court remedies: reinstatement, back pay, full reinstatement of benefits and seniority rights, actual damages and any other appropriate relief as well as court costs and attorney’s fees

Can not take adverse action against an employee because employee or its representative communicates in good faith the existence of any waste of public funds, property or manpower or violation or suspected violation of a law, rule, or regulation including participating in an investigation, hearing, court proceeding, legislative or other inquiry or other form of administrative review, or where employee refused or objected to directive they reasonably believe violates law, rule, or regulation and employer cannot implement rules or policies that unreasonably restrict employee’s ability to document a violation

Can not dismiss, withhold salary increases or employment-related benefits, transfer or reassign, deny promotion or demote if employee reports violation of federal law or regulation, state law or rule, violates ordinance of a political subdivision or misuse of public funds

Both

Report to supervisor or appointing authority or state ethics commission if supervisor or appointing authority involved with violation. If no good faith effort made by reportee, submit a written report to any concerned person, agency, or organization; can also seek a legal remedy

Can not discharge, deny appointment or promotion, if employee discloses information they reasonably believe evidences a violation of law or rule, mismanagement, gross abuse of funds, abuse of authority, or a substantial and specific danger to public health or safety, unless disclosure prohibited by statute

Public

If employer is not head of a state department/agency or serves in a supervisory capacity within the executive branch of state government, employee can enforce through civil action, and employer is liable for affirmative relief including reinstatement, back pay, or any other equitable relief including attorney’s fees and costs. If employee permanent, classified.

Can not prohibit employee from discussing the agency’s operation with member of legislature, reporting violation of state or federal law, rules or regulations or require prior notice to making report

Public

If employee is permanent, classified, can appeal to state civil service board, any court of law or administrative hearing, if filed within 90 days of alleged disciplinary action. If employee is unclassified, can bring civil action, for injunction and/or actual damage, within 90 days of alleged violation. Court can grant reinstatement, back wages, full reinstatement of benefits and seniority rights, actual damages, and reasonable attorney fees and witness fees

If officer or employee is permanent, classified, suspension on leave without pay for maximum of 30 days; if willful or repeated violation, may require resignation or disqualification for appointment to or employment as a state officer or employee for maximum of 2 years

Can not subject to reprisal, threat to use authority, or influence in any manner, against any person who supports, aids, or substantiates a report or an employee who in good faith reports, discloses, divulges any facts, or information relative to an actual or suspected violation of any law, statute, executive order, administrative regulation, mandate, rule or ordinance, mismanagement, fraud, waste, abuse of authority or substantial and specific danger to public health or safety

Public

Civil action for injuries or punitive damages within 90 days after violation

338.121 & 338.991

Can not discharge or discriminate if employee or representative files a complaint, institutes a proceeding or testifies regarding a violation of any occupational safety or health statute that threatens physical harm and imminent danger

Both

File a complaint with commissioner for reinstatement, back pay, and other appropriate relief

Can not act in a retaliatory manner against an employee who discloses or threatens to disclose a violation of environmental law, rule or regulation or provides information to or testifies before an investigation hearing

Both

Civil action for triple damages and all court costs and attorney’s fees and all other civil and criminal remedies

42:1169

Can not discipline or reprise an employee who reports a violation of any rule, order, or regulation, or any acts of impropriety within a government entity or related to the scope and/or duties of public employment or public office within state government

Public

If employee is suspended, demoted, or dismissed, then report to board of ethics for elected officials or the commission on ethics for public employees. Remedies: reinstatement, back pay and benefits

Can not discharge, threaten, or otherwise discriminate if employee reports a violation of a law or rule of the state, political subdivision or US, a condition or practice that would put at risk the health or safety of that employee or is requested to participate in an investigation, hearing, or inquiry or refuses to carry out a directive that violates the act, or deviates from applicable patient standard of care

Both

Yes

Employee must first report violation to a supervisor and give the employer a reasonable opportunity to correct unless employee has specific reason to believe that reports to employer won’t result in correction

Can not take or refuse to take any personnel action as reprisal if applicant or employee discloses abuse of authority, gross mismanagement or waste of money, violation of law or substantial and specific danger to public health or safety and seeks a remedy

Public

Can submit a complaint to the secretary within 6 months of first knowledge of violation; if violation found, secretary can remove detrimental information from complainant’s personnel record, reinstatement, promotion or end of suspension, back pay, leave or seniority and attorney’s and court fees

Can not discharge, suspend, demote, or other retaliatory action if employee discloses or threatens to disclose; provides information or testifies; or objects or refuses to participate in violation of law, rule or risk to public health, safety, or environment

Public

Employee must bring violation to attention of his/her supervisor and afford them the opportunity to correct unless employee a) was certain supervisors know of violation and situation is an emergency, b) reasonably fears physical harm resulting from disclosure or c) unless disclosure is evidence of a crime

Can file civil action within 2 years of incident, court can give all civil law tort remedies including: temporary restraining order, preliminary/permanent injunction, reinstatement, reinstate full benefits and seniority rights, three times back pay and benefits, court and attorney’s fees

Can not discharge, threaten, or otherwise discriminate if employee or representative of employee reports or is about to report violation of law, regulation, or rule or because employee testifies in hearing or a court action unless employee knows disclosure is false

Both

Can file civil action within 90 days if violation for injunction and/or actual damages, including attorney’s fees. Court may award: reinstatement, back pay, reinstate benefits and seniority rights, and court costs

Can not discharge, discipline, threaten, or otherwise discriminate or penalize if employee reports violation of federal or state law or rule or is requested to testify or refuses to perform an action that he/she reasonably believes is in violation unless its disclosure of confidential communication provided by civil law

Both

Can file civil action to recover all damages and attorney’s fees as well as injunctive relief

Civil penalty; $25 per day per injured employee, maximum $750 per injured employee

Can not take or prohibit disciplinary action if employee discusses operations of agency, with any member of legislature or state auditor, any violation of law, rule or regulation, mismanagement, gross waste of public funds, abuse of authority, or substantial and specific danger to public health or safety, as long as disclosure not specifically prohibited by law

Public

No prior notice required

Can file an administrative appeal, if disciplinary action taken, with state personnel advisory board within 30 days of action; board can modify and/or reverse disciplinary action and order appropriate relief. Can file a civil action for damages within 90 days of alleged violation. Court may award actual damages and attorneys fees

State personnel advisory board can recommend that violator be suspended without pay for maximum 30 days; if willful or repeated violation, recommend forfeiture and disqualification of appointment or state employment for a maximum of 2 years

Can not discharge or otherwise terminate employee in retaliation if employee refused to violate constitutional provision, statute or administrative rule regarding public health, safety, or welfare or reports a violation of the same

Both

Must first exhaust internal procedures for appealing discharge, but after 90 days or exhaustion, whichever comes first, can file an action (within 1 year of discharge) to get back pay and fringe benefits (for a maximum 4 years, less interim earnings) and punitive damages if employer engaged in fraud or malice in discharging

Person with authority to recommend, approve, direct, or take other personnel action can not dismiss, demote, transfer, reassign, suspend, or other personnel action if employee discloses information or testifies before public counsel or other officials

Public

If incident occurs or is about to occur, employee contacts public counsel who sends finding to personnel appeals board or director/chief operations officer of agency, who, after a hearing, can stay or reverse personnel action, grant back pay or other appropriate relief and reasonable attorney’s fees, or employee can maintain an action under Administrative Procedures Act for damages, reinstatement, back pay or other relief including attorney’s fees

Can not directly or indirectly intimidate, threaten, coerce, command, or influence another state officer or employee or prevent disclosure of violation of state law/regulation, abuse of authority, substantial and specific danger to public health or safety or gross waste of public money

Public

Can file a written appeal with department of personnel within 2 years of disclosing; hearing officer can order person to desist and refrain from such action

618.445

Can not discharge or discriminate if employee files a complaint, institutes a proceeding or testifies regarding a violation of health and safety statutes

Both

Can file a complaint after first notifying employer and division, within 30 days of the violation for a reinstatement, back pay and lost work benefits

Can not interfere in any way with employee’s right to publicly discuss and give opinions as an individual on all matters concerning the state and its policies, unless its disclosure on confidential and privileged records or communication

Public

If willfully and knowingly violates any provision is guilty of a violation

275-E:1, et seq.

Can not discharge, threaten, or otherwise discriminate if employee reports violation of any state, federal or political subdivision law or rule, or testifies as to a violation or refuses to execute a directive which would result in a violation

Both

Must first bring allegation to supervisor and allow for a reasonable opportunity to correct unless employee has specific reason to believe notice wouldn’t result in prompt remedy of violation

Employee must first make a reasonable effort to remedy incident though in-house grievance procedure, then can get hearing with labor commissioner or his/her designee who can reinstate, order back pay, fringe benefits, and seniority rights as well as injunctive relief

Failure to comply with rules shall be a violation for each day of non-compliance

Can not discharge, suspend, demote, or take other retaliatory action if employee discloses or threatens to disclose an activity, policy, or practice of employer or other, with whom there’s a business relationship, testify or object to or refuse to participate if action violates law, rule is fraudulent or criminal or incompatible with clear mandate concerning public health, safety, welfare, or protection of the environment

Both

Must bring violation to attention of a supervisor and afford a reasonable opportunity to correct, unless violation is known to supervisor or employee reasonably fears physical harm as a result of disclosure and situation is an emergency in nature

Can file civil action within one year of incident and receive all remedies available in civil law torts including injunction, reinstatement, reinstate full benefits and seniority rights, back pay and benefits, reasonable court and attorney’s fees, punitive damages

Civil fine, maximum $10,000 for first violation and maximum of $20,000 for each subsequent violation

Can not discharge, suspend, demote or take other adverse employment action if employee discloses or threatens to, provides information or testifies, or objects to or refuses to participate in an action that violates law, rule, or regulation or presents a substantial and specific danger to public health or safety

Both

Must first report violation to supervisor and allow a reasonable opportunity to correct

Can file a civil action within one year of incident to get an injunction, reinstatement, full fringe benefits and seniority rights, back pay, and reasonable attorney’s and court costs

Can not discharge, threaten or otherwise discriminate if employee or their representative reports or is about to report a violation of state or federal law, rule, or regulation, fraud, misappropriation of state resources or substantial and specific danger to public health and safety

Public

Can file in superior court for damages, an injunction or other appropriate relief within one year of incident. Remedies include reinstatement, back pay, full fringe benefits and seniority rights and reasonable attorney’s fees. If court finds willful violation, damages 3 times the amount of actual costs and reasonable attorney’s fees

95-240, et seq.

Can not discriminate, discharge, suspend, demote or take other adverse action if employee or representative files claim, initiates an action or testifies on worker’s compensation, OHSA, and wages or hours

Both

Can file complaint with Commission of Labor within 180 days of the incident; after 180 days, employee can request a right-to-sue letter, then can file civil action within 90 days of issuance of the right to sue and get injunction, reinstatement, full fringe benefits and seniority rights, back pay and benefits and reasonable attorney’s fees. If court finds willful violation, can get treble damages

Can not dismiss, withhold salary increase or benefits, transfer, reassign, deny promotion or demote or otherwise discriminate if employee reports in writing a violation of federal or state laws, agency rules or misuse of public resources

Can not take any disciplinary or retaliatory action including withholding pay, benefits, transfer/reassigning, removing/suspending, reducing pay/position or denying a promotion; if employee reports a violation of state or federal statute, ordinance, or regulation of a political subdivision

Both

Must notify and file a report; employer has 24 hours to correct

Can file a civil action for injunction, reinstatement, back pay, full fringe benefits and seniority rights, court and attorney’s fees. If employer deliberately violates statute, court can award interest on back pay

No officer or employee of any state agency shall prohibit or take disciplinary action if employee disclosed public information, reports a violation of state or federal law, rule, or policy, mismanagement, gross waste of public funds, abuse of authority, or substantial and specific danger to public health and safety

Public

Can file an appeal with Oklahoma Merit Protection Commission within 60 days of disciplinary action to get corrective action

Violator can be suspended without pay, demoted or discharged, probation for 6 months. If they knowingly or willfully violate, court will forfeit their position and hold them ineligible for appointment or employment for a minimum of 1 year and maximum of 5 years

40§402, et seq.

Can not discharge, discriminate, or take adverse personnel action if employee files a complaint, institutes a proceeding, or testifies regarding a violation of Occupational Safety and Health Act which causes or is likely to cause death or serious physical harm

Public

Yes

File complaint with commissioner

Misdemeanor

State

Code Section

Prohibited Activity

Public or Private Employees

Opportunity for Employer to Correct?

Remedies

Penalties

OREGON

659A.200 et seq.

A public employer can not discriminate, dismiss, demote, transfer, reassign, or take other disciplinary action if employee responds to official request to disclose or threatens to disclose a violation of federal or state law, rule or regulation, mismanagement, gross waste of funds, abuse of authority, or substantial and specific danger to public health and safety or the fact that a recipient of state funds is subject to a felony or misdemeanor or warrant for arrest

Public

Right to appeal to Employment Relations Board within 30 days of action for reinstatement and back pay

654.062

Can not bar, discharge, or otherwise discriminate if employee or prospective employee or representative of employee opposes, makes a complaint, institutes a proceeding or testifies about a violation of law, regulation or standard pertaining to safety and health

Both

Can file complaint with commissioner of the Bureau of Labor & Industries within 30 days of violation for reinstatement and back pay as well as other appropriate relief. Can also file civil action

Can not discharge, threaten, retaliate, or otherwise discriminate if employee responds to official request or because employee or representative reports or is about to report a violation or waste

Both

Can file a civil action for injunction and/or damage within 180 days after disciplinary action. Court can award reinstatement, back pay, full fringe benefits and seniority rights, actual damages and reasonable attorney’s fees

Civil fine maximum $500. If violation with intent to discourage disclosure of criminal activity, court can suspend person from public service for a maximum 6 months unless person holds an elected public office

Can not discharge, threaten, or otherwise discriminate if employee or representative reports to a public body or is about to regarding a violation of state or federal law, regulation or rule or because employee responds to an official request

Both

Can file a civil action within 3 years of the violation for an injunction and/or actual damages including reinstatement, back pay, full fringe benefits and seniority rights, and attorney’s fees

Can not dismiss, suspend, demote, or decrease compensation if employee files a report for violation of federal or state statute, laws, regulations, ordinances, substantial abuse, misuse, or loss of substantial public funds or resources

Public

If employee report results in saving of public funds, 25% of estimated net savings from first year implementation or a maximum of $2,000 will be rewarded employee; once employee exhausted all available grievance or other administrative remedies, can file a nonjury civil action within 1 year of reporting or exhaustion of all available grievance, judicial or administrative remedies to get reinstatement, back pay, actual damages (maximum $15,000), reasonable attorney’s fees (maximum $10,000 for trial and $5,000 for appeal)

41-15-510, 520

Can not discharge or discriminate if employee files complaint, institutes a proceeding or testifies regarding statutes, rules, or regulations regarding occupational safety and health

Both

Can file complaint with commission of labor within 30 days of the violation for reinstatement, back pay and other appropriate relief

C an not deprive of freedom of speech to report violation of state law or file a suggestion.

Public

Can file a grievance with the career service commission

State

Code Section

Prohibited Activity

Public or Private Employees

Opportunity for Employer to Correct?

Remedies

Penalties

60-11-17.1; 60-12-21

C an not discharge, discriminate, or engage in any economic or otherwise reprisal if employee makes a complaint about violation of wage rules or any other complaint or testimony; can not threaten to terminate or take other retaliatory action if employee reports or is about to report sex discrimination in wages

Can not discharge or terminate if employee refuses to participate in or refuses to remain silent about violation of criminal or civil code, US laws, or neglect to protect public health, safety or welfare

Public

Can sue employer for retaliatory discharge, get damages, and reasonable attorney’s fees and costs

50-3-106; 50-3-409

Can not discharge or discriminate if employee files a complaint, institutes a proceeding, or testifies regarding a violation of any statute or regarding occupational safety and health

Both

Can file a complaint with Commission of Labor within 30 days of the violation for reinstatement, back pay, and other appropriate relief

Can not suspend, terminate or take other adverse personnel action if employee reports a violation of law by employer or other employee

Public

Must report to appropriate law enforcement authority, then exhaust grievance or appeal process before suing no later than 90th day after violation, for injunction, actual damages, court costs and reasonable attorney fees. May also get reinstatement, back pay, full fringe benefits, seniority rights, and set maximum on compensatory damages

Can not discharge, threaten, or otherwise discriminate if employee reports, testifies or objects/refuses to carry out directive that violates law, rule, or regulation of state, US or political subdivision or shows waste of public funds, property or manpower

Public

Can file civil action within 180 days of violation for injunction or actual damages and court and attorney’s fees. In addition court can award reinstatement, back pay, full fringe benefits and seniority rights

Can not discharge or discriminate if employee files a complaint, institutes a proceeding or testifies regarding a violation of occupational, health and safety code

Both

Can file a complaint with commission within 30 days of violation to get reinstatement with back pay as well as other relief

VIRGINIA

40.1-51.2:1 & 51.2:2

Can not discharge or discriminate if employee files, testifies, or otherwise acts to exercise rights under safety and health statute

Private

Yes in conciliation after complaint filed and investigation indicates a violation

Can file complaint with commissioner within 60 days of violation for reinstatement and back pay. If commissioner refuses to issue a charge, employee can file in circuit court for appropriate relief

WASHINGTON

42.40.010, et seq. 49.60.210; 42.41.010, et seq.

Can not intimidate, threaten, coerce, command, influence, or attempt the above if employee discloses to auditor information of improper government action or identifies rules warranting review or provides information unless disclosing is prohibited by law

Public

File complaint with governing body of the local government within 30 days of violation, then can request a hearing to get reinstatement, back pay, injunctive relief, and costs and attorney’s fees

Retaliator subject to maximum $3,000 penalty and suspension or dismissal

Can not discharge, threaten, or otherwise discriminate or retaliate if employee or representative reports or testifies as to a violation of state or federal statute or regulation, or ordinance of political subdivision or regulation or code of conduct or ethics designed to protect public from employer waste

Public

Can file civil action within 180 days of violation for reinstatement, back pay, full fringe benefits and seniority rights, actual damages, court and attorney’s fees

Civil fine maximum $500 and if violator holds a public office by election or appointment and committed violation with intent to discourage disclosure: suspension maximum 6 months

21-3A-13

Can not discharge or discriminate if employee files a complaint, institutes a proceeding or testifies regarding a violation of the occupational safety and health act

Public

Can file complaint with commissioner within 30 days for reinstatement, back pay, and other appropriate relief

Can not initiate, administer, or threaten to take retaliatory action if employee discloses violation of state or federal law, rule, or regulation, mismanagement or abuse of authority, substantial waste of public funds or a danger to public health or safety

Public

Commission will conduct conciliation after complaint filed and investigation indicates a violation

Can file complaint with state employment relation commission within 60 days of retaliation. The commission can award reinstatement, back pay, expungement of adverse material on employee’s file, and attorney’s fees

If respondent fails to comply with commission order, minimum $10, maximum $100 for every day of failure

WYOMING

27-11-109(e)

Can not discharge or discriminate if employee files a notice of complaint or institutes a proceeding or testifies as to a violation of the occupational health and safety statutes

Both

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Whistle-Blowers

Whistle-Blowers

In a definition typical of those found in the research literature, Janet P. Near and Marcia P. Miceli in 1985 described whistle-blowers as organization employees, current or former, who report practices they consider unethical or illegal to someone with the power to take action. Although the public and many journalists may consider whistle-blowing to include only those cases in which the whistle-blower has alerted external audiences to the misconduct, for example, of someone in the media or in law enforcement, researchers in the field since the mid-1980s have tended to extend the definition to include both internal and external audiences. For example, an employee at a nuclear power plant might alert only a manager in a superior position in the authority hierarchy to a safety violation or concern. Researchers refer to this as “internal whistle-blowing.” Alternatively, the individual employee could go directly to a mass-media outlet or to law enforcement with their observations. This is termed “external whistle-blowing.” In the prototypical case, it has been found that employees with serious concerns tend to take them first to their superiors in the employing organization, and only when they find the senior managers to be inert or complicit in the perceived wrongdoing do they take the matter to external agencies that might be able to intercede (Glazer and Glazer 1989; Miethe and Rothschild 1994).

A GROWING PHENOMENON

In the late twentieth century and the early twenty-first century the extent of whistle-blowing grew greatly, with studies reporting substantial cases in Canada, Australia, South Africa, the United Kingdom, and Europe in addition to the United States, and worldwide attention paid to whistle-blowers in the mass media has been expanding. One analysis of previous research studies of whistle-blowing in the United States found that approximately 37 percent of employees observe in their workplaces some type of wrongdoing that troubles them (Miethe and Rothschild 1994). This rate, however, can vary considerably by occupational grouping. Among internal auditors, people who are trained to discover financial fraud and whose jobs require them to look for it, 82 percent say they have observed wrongdoing (Near and Miceli 1985). A large survey of federal employees found the rates of observing misconduct to range from 7 percent to 45 percent, depending upon the agency and the occupation involved (U.S. Merit Systems Protection Board 1993). The proportion of those who say they have observed serious misconduct in the workplace varies greatly by the opportunity for such observation in one’s occupation.

Of those who do say they have observed misconduct, most remain silent, although this too can vary considerably by country, occupation, and type of employer. Across six U.S. studies of employers, the average rate of silence among those who said they did observe serious misconduct in their places of work was 58 percent (Miethe and Rothschild 1994), while a later international review of the research literature shows that the rate of those who remain silent can vary from 25 percent to 91 percent (Maria 2006). These numbers imply that there is considerable room for growth in this whistle-blowing phenomenon if more individuals felt free to voice their concerns. Undeniably, interviews with these silent observers indicate two main reasons so many employees hold back from voicing their concerns at work: (1) they fear retribution from their employer, and (2) they suspect that their reportage would not effect organizational change in any case (Rothschild and Miethe 1999).

Research findings quite clearly show that observers of misconduct do put themselves in jeopardy by reporting or disclosing the misconduct, whether they stay inside the organization or go outside the organization with their disclosures. Indeed, employer retaliation against whistle-blowers is the rule, not the exception, and some whistle-blowers are so devastated by the reprisals they suffer that they cannot reclaim their lives (De Maria 1999; Alford 2001). A nationwide study of whistle-blowers from all occupations and regions of the United States found that among those employees who stayed within their employing organization, reporting their observations and concerns only to those above them in the organizational hierarchy, the following occurred as a result of their disclosures:

69 percent were fired or forced to retire from their jobs,

64 percent saw their job performance evaluations decline abruptly,

68 percent had their work more closely monitored by supervisors,

64 percent felt they had been blacklisted from getting another job within their field.

For each of these items, the rate of retaliation was 10 to 15 percentage points higher for those who went outside of the employing organization with their concerns (Rothschild and Miethe 1999). In many cases, the reprisals that follow the reportage are experienced as traumatic. Some 84 percent said the experience gave rise to “severe depression or anxiety,” 78 percent said they learned from it “distrust of others,” 69 percent said they suffered a “decline in physical health,” 66 percent said they suffered “severe financial decline,” and 53 percent said the experience harmed their “family relations.” Many former whistle-blowers describe their experiences as giving rise to a political and personal transformation by which they now see themselves as exceedingly moral and their former employers (and in many cases, large organizations in general) as corrupt (Rothschild and Miethe 1999).

Statistical analysis of the data indicates that no special gender, age, educational attainment, years of employment, or method of reporting can insulate individuals from organizational retaliation should they choose to disclose the organizational misconduct. Validity of the claim also provides no insulation. Indeed, the data show that retaliation against whistle-blowers is most severe and certain when the observed wrongdoing is systemic and central to the way the organization conducts its business and accumulates its profit (Rothschild and Miethe 1999).

Federal and state laws that would protect whistle-blowers from retaliation and that would thereby encourage the disclosure of organizational practices that injure the public are not comprehensive, and even where they do seem to be applicable, they are frequently not enforced (see Government Accountability Project 1996 for a review of these). It is not easy for the whistle-blower, generally unemployed, to mount a successful legal claim against a former employer with vastly greater legal resources. The Sarbanes-Oxley Act of 2002 provides the most substantial legal protection for whistle-blowers, but it applies only to those who would disclose corporate misconduct that, if proven, would materially affect the valuation of a publicly traded company. The qui tam suits filed under the provisions of the False Claims Act have proven most effective at gaining large awards for whistle-blowers, but this act applies only to those employees whose employers were defrauding the federal government, again covering only a portion of the potential whistle-blowers.

As organizations grow larger in scope and more complex operationally, effective oversight from outside agencies becomes more difficult, and often the only people who are in a position to detect when the organization is defrauding or endangering the public are key employees themselves. The U.S. Congress has recognized the public’s interest in protecting whistle-blowers so abuses of the law or the public trust can come to light, and parliaments in other nations have recognized the same. But the extent of persistent retaliation against whistle-blowers and the extent of employees who choose to remain silent in the face of abuses at work suggests that more needs to be done.

Whistleblower Protection Laws (1989)

Major Acts of Congress
COPYRIGHT 2004 The Gale Group Inc.

Whistleblower Protection Laws (1989)

Robert G. Vaughn

The whistleblower provision of the Civil Service Reform Act of 1978, known as the Reform Act (P.L. 95-454, 92 Stat. 111) is the major piece of legislation protecting federal employees who disclose information (blow the whistle) on government misconduct or waste. In his presidential campaign, Jimmy Carter had promised to push for legislation to protect federal employee whistleblowers from retaliation. Carter made good on his campaign promise, and the provision he proposed received bipartisan support in Congress. In 1989 the Whistleblower Protection Act, known as the WPA (P.L. 101-12, 103 Stat. 16), strengthened the protections provided in the Reform Act.

These whistleblower protection laws prohibit reprisal against federal employees who "reasonably" believe that their disclosures show "a violation of law, rule, or regulation, gross mismanagement, a gross waste of funds, an abuse of authority, or a specific and substantial danger to public health and safety." Disclosures can be made to any person, and internal disclosure (within the government agency) is not required. Disclosures are only protected if "not specifically prohibited by law and if such information is not specifically required by an Executive Order to be kept secret in the interest of national defense or the conduct of foreign affairs." These prohibited disclosures, however, can be made to the inspector generals of government agencies or to the Office of Special Counsel, an office created in part to represent the interests of whistleblowers.

ENFORCEMENT

These laws create a structure of administrative enforcement. Whistleblowers who have been subjected to certain personnel actions, such as removal, suspension, transfer, reassignment, or other similar actions taken as punishment,
can raise whistleblowing as a defense before the United States Merit Systems Protection Board, a type of administrative court. Whistleblowers who were subject to personnel actions not appealable to the board have to rely either on the Office of Special Counsel to bring their claims before the board or may commence an independent right of action before the board. This independent right of action allows the board to address only employees' whistleblower claims. The decisions of the board are reviewed by the United States Court of Appeals for the Federal Circuit.

Whistleblowers are entitled to a number of remedies, including back pay and compensatory damages. These laws permit the Office of Special Counsel to commence disciplinary actions against federal officials who have retaliated against whistleblowers. Under this authority, a number of individual federal officials have been dismissed or suspended. In addition, the Special Counsel may require the head of an agency to respond to the allegations made by a whistleblower.

INCREASED PROTECTION

The WPA strengthened whistleblower protection. Perhaps the most important change eases the burden on federal employees of proving they have been subjected to a reprisal. Employees need only show that protected disclosures were a "contributing factor" to the personnel action alleged to have been taken in reprisal. If an employee can demonstrate this connection, the agency must show by "clear and convincing evidence" that it would have taken the same action had the employee not made a disclosure protected by law. The WPA also rejects a number of decisions of the U.S. Court of Appeals for the Federal Circuit that Congress believed were unduly restrictive interpretations of the law.

WHISTLEBLOWING AS CIVIC DUTY

One of the most important effects of these whistleblower laws has been to legitimize whistleblowing. Whistleblowing is no longer seen as an act of disloyalty but as the fulfillment of civic responsibility. Whistleblowers protect society not only from misconduct and waste but also from unsafe and dangerous conditions.

At the time of the passage of the Reform Act, whistleblowing was a scorned activity often officially punished. Today, Congress approves of whistleblowing in the strongest terms and has acted often to protect whistleblowers from reprisal. Dozens of state statutes, many modeled after the Reform Act or the WPA, protect whistleblowers in both the public sector and private sector.

PROTECTION IN THE PRIVATE SECTOR

Federal legislation protects whistleblowers who work in the private sector and who report violations of a variety of federal health, safety, and environmental laws. Also, in response to fraud and misconduct by large corporations and the accountants and attorneys representing them, Congress included whistleblower protection in the Sarbanes-Oxley Act of 2002 (P.L. 107-204, 116
Stat. 802), a law addressing this misconduct. Federal whistleblower protections now cover millions of private sector employees.

The private sector provisions are administrated by the United States Department of Labor. The whistleblower provision of the Sarbanes-Oxley Act permits private-sector whistleblowers to bring an action in federal district court if the Department of Labor does not resolve their claims of reprisal in a timely manner. In those district court actions, whistleblowers are entitled to receive a trial by jury.

Like public sector whistleblowers, those in the private sector also support the public's right to know about the operations of government. The disclosures by private-sector whistleblowers often concern the misconduct of government officials as well as their employers. Disclosures concerning health or safety or the environment, likewise, may identify weaknesses in government administration or regulation. In these ways, protections of private-sector whistleblowers support the freedom of expression and the right to know as do the protections of public employees.

EXPOSING CORRUPTION AND FRAUD

Public and private sector employees are important sources of information about the corruption of government officials and fraud regarding public funds. The federal False Claims Act, after amendments in 1986 (P.L. 99-562, 100 Stat. 3153), has encouraged disclosures by both private and public employees that have led to the recovery of billions of dollars fraudulently obtained from the government. The False Claims Act contains its own whistleblower provision to protect those employees who seek to use the act to challenge fraud and misconduct. The act encourages whistleblowing not only through whistleblower protection but also by permitting them in some circumstances to receive a percentage of the funds recovered on behalf of the government.

INTERNATIONAL PROTECTIONS

More recently there has been a growing international consensus for whistleblower protection. Many countries in Europe, Asia, Africa, and South America have adopted provisions applying whistleblower protection to large segments of society. Several international instruments, including multinational treaties, regulations of international institutions, and codes of conduct now include protections of whistleblowers.

Whistleblower protection, like freedom of information laws and other open government provisions, supports the right of freedom of expression. This right is the foundation of democratic accountability and of democratic government.

See also: Civil Service Reform Act; Freedom of Information Act.

BIBLIOGRAPHY

Devine, Thomas. "The Whistleblower Protection Act of 1989: Foundation for the Modern Law of Employment Dissent." Administrative Law Review 35 (1999): 531–579.

Vaughn, Robert G. "Statutory Protection of Whistleblowers in the Federal Executive Branch." University of Illinois Law Review (1982): 615–667.

Protecting Whistleblowers

According to the nonprofit group the National Whistleblower Center, about half the whistleblowers who responded to a 2002 survey reported that they had been fired after reporting misconduct. Most of those who remained on the job reported harassment or discipline. The Office of Special Counsel, a government agency that protects government whistle-blowers, reports that they handle nearly 700 complaints per year about employer retaliation. While more than a dozen federal laws protect whistle-blowers in particular circumstances, there are still many complainants who do not receive government protection, including those who report election fraud, campaign finance abuse, and obstruction of justice.

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Whistleblowing

West's Encyclopedia of American Law
COPYRIGHT 2005 The Gale Group, Inc.

WHISTLEBLOWING

The disclosure by a person, usually an employee in a government agency or private enterprise, to the public or to those in authority, of mismanagement, corruption, illegality, or some other wrongdoing.

Since the 1960s, the public value of whistle-blowing has been increasingly recognized. For example, federal and state statutes and regulations have been enacted to protect whistleblowers from various forms of retaliation. Even without a statute, numerous decisions encourage and protect whistleblowing on grounds of public policy. In addition, the federal False Claims Act (31 U.S.C.A. § 3729) will reward a whistleblower who brings a lawsuit against a company that makes a false claim or commits fraud against the government.

Persons who act as whistleblowers are often the subject of retaliation by their employers. Typically the employer will discharge the whistleblower, who is often an at-will employee. An at-will employee is a person without a specific term of employment. The employee may quit at any time and the employer has the right to fire the employee without having to cite a reason. However, courts and legislatures have created exceptions for whistleblowers who are at-will employees.

Whistleblowing statutes protect from discharge or discrimination an employee who has initiated an investigation of an employer's activities or who has otherwise cooperated with a regulatory agency in carrying out an inquiry or the enforcement of regulations. Federal whistle-blower legislation includes a statute protecting all government employees, 5 U.S.C.A. §§ 2302(b)(8), 2302(b)(9). In the federal civil service, the government is prohibited from taking, or threatening to take, any personnel action against an employee because the employee disclosed information that he or she reasonably believed showed a violation of law, gross mismanagement, gross waste of funds, abuse of authority, or a substantial and specific danger to public safety or health. In order to prevail on a claim, a federal employee must show that a protected disclosure was made, that the accused official knew of the disclosure, that retaliation resulted, and that there was a genuine connection between the retaliation and the employee's action.

Many states have enacted whistleblower statutes, but these statutes vary widely in coverage. Some statutes apply only to public employees, some apply to both public and private employees, and others apply to public employees and employees of public contractors.

Some statutes cover a broad array of circumstances, such as those that apply to federal employees that prohibit employers from dismissing workers in reprisal for disclosing information about, or seeking a remedy for, a violation of law, gross mismanagement, gross waste of funds, abuse of authority, or a specific danger to public safety and health. Other statutes are narrow in scope, such as one that limits the protection of public and private employees to retaliation for reporting possible violations of local, state, or federal environmental statutes. A whistleblower statute may also limit protection to discussions of agency operations with members of the legislature or to disclosure of information to legislative committees or courts.

In whistleblower cases, states follow their general rules for determining whether a public policy cause of action exists in favor of the employee. Therefore, in states in which wrongful discharge actions must have a statutory (legal) basis, the case will be dismissed if the employer did not violate a statutorily enacted public policy. In many cases, the courts have refused to recognize a whistleblower's claim because no clearly mandated statutory policy has been identified. In addition, employees who blow the whistle on matters that affect only private interests (e.g., complaints about internal corporate policies) will generally be unsuccessful in maintaining a cause of action for discharge in violation of public policy.

Under the federal False Claims Act, any person with knowledge of false claims or fraud against the government may bring a lawsuit in his own name and in the name of the United States. As long as the information is not publicly disclosed and the government has not already sued the defendant for the fraud, the whistle-blower, who is called a relator in this action, may bring a False Claims Act case.

The relator files the case in federal court under seal (in secret), and gives a copy to the government. The government then has 60 days to review the case and decide whether it has merit. If the government decides to join the case, the case is unsealed, a copy is served on the defendant, and the government and the relator work together in the case as co-plaintiffs. If the government declines to join the suit, the relator may proceed alone. In a successful False Claims Act case the relator will receive at least 15 percent but not more than 25 percent of the proceeds of the action or settlement of the claim, depending upon the extent to which the person substantially contributed to the prosecution of the action.

In the early 1990s, commentators were claiming that men were more likely than women to blow the whistle on improper conduct. Some analysts suggested the reason for this perception was that men seem to seek financial gain for whistleblowing. During the early 2000s, however, a number of women became involved in high profile acts of whistleblowing—for reasons other than fame and fortune.

In 2001, Sherron Watkins, a vice president at Enron Corporation, informed the company's board that Enron's accounting practices were improper. Enron later suffered a major collapse—largely as a result of its accounting practices—that led to the company's bankruptcy and to the indictment of the company's auditor and chief financial officer. The following year, Cynthia Cooper, an auditor with WorldCom, told the company's board that WorldCom had covered up major losses of $3.8 billion through false bookkeeping. Like Enron, the accounting

failures led to WorldCom's bankruptcy. During the same year, Coleen Rowley, an FBI staff attorney for more than 20 years, sent a letter to FBI director robert mueller, indicating that the FBI's national headquarters had mishandled an investigation of Zacarias Moussaoui, who was later believed to be a co-conspirator in the September 11, 2001, terrorist attacks. Rowley later spoke before the intelligence committees of the House of Representatives and the Senate about her accusations.

Time magazine dubbed 2002 the "Year of the Whistleblower," and named Watkins, Cooper, and Rowley as its "Persons of the Year." Their stories fueled the observation that women are more likely to become whistleblowers not for the potential for fame and financial gain, but out of a sense of duty. Although Watkins, Cooper, and Rowley were each subjected to rather harsh treatment by their respective employers following their disclosures, they became national celebrities by "speaking up when no one else would."

further readings

Callahan, Elletta Sangrey, and Terry Morehead Dworkin. 1992. "Do Good and Get Rich: Financial Incentives for Whistleblowing and the False Claims Act." Villanova Law Review 37.

Whistleblower

Encyclopedia of Management
COPYRIGHT 2009 Gale

Whistleblower

Employees who report wrongdoing they have discovered at work are known as whistleblowers. Wrongdoing may refer to illegal actions taken by the company or its employees, such as immoral choices regarding customers and unethical practices used by the corporate board. Thanks to several major corporate scandals in the early 2000s, policies and practices regarding whistleblowers have become a popular topic. Whistleblowers have exposed a wide variety of issues, including environmental actions (such as toxic waste dumping), illegal benefit packages for executives, unethical hiring or lay-off procedures, violation of work-place safety laws, and unfair employee reimbursement.

In earlier years of American companies, such as the 1960s, corporations rarely encountered whistleblowers; then, more focus was placed on company loyalty and more freedom granted in layoffs. The rise of lawsuits against companies for dangerous business practices in the 1970s and 1980s led to a business society more tolerant of whistleblowing activity, and such legislation as the 1989 Whistleblower Protection Act and the Sarbanes-Oxley Act made corporate whistleblowing an even easier and more common practice.

Famous whistleblowers include Cynthia Cooper, Sherron Watkins, and Peter Rost. Cynthia Cooper spear-headed an internal audit of the company WorldCom, continuing even when she was asked to postpone the investigation; Cooper discovered fraud dealing with billions of dollars. Sherron Watkins is considered one of the primary whistleblowers in the Enron scandal, from her actions in notifying Enron's C.E.O. Kenneth Lay concerning fraudulent activity to her testimony before U.S. Congress. Peter Rost, known for his book The Whistleblower, also gave testimony concerning fraudulent activity he had witnessed at the pharmaceutical giant Pfizer and other pharmaceutical companies.

WHISTLEBLOWING FOR EMPLOYEES

Whistleblowing is a very serious choice for employees to make, and it may come with a very high cost, especially if they do not have thorough proof of wrongdoing or are not willing to take all the necessary measures in reporting illegal behavior. There are several very important facets to consider:

The whistleblower must be sure what the consequences of whistleblowing will be. How much damage has been done to the environment, investors, or others should be ascertained, along with how these groups will benefit from whistleblowing. Sometimes, there is no clear benefit to reporting an illegal activity. Whistleblowers should also be sure that the illegal activity merits a full declamation to authorities, or a recourse to ethical standards set within the corporations.

Whistleblowers should keep in mind the time involved in the illegal activity. Has it been going on for a long time? Will the harmful effects of the wrongdoing be immediately apparent? Can people be saved from unethical practices if immediate action is taken by the whistleblower?

The whistleblower should be very careful when considering physical and emotional closeness to the wrongdoing. Is the whistleblower near to the source of wrongdoing in their function within the company? Does he or she have an emotional connection to the issue that may cloud judgment?

WHISTLEBLOWING FOR EMPLOYERS

Companies are becoming increasingly concerned about inappropriate whistleblowing by disgruntled employees seeking to make a profit at their corporation's expense. Certain parts of recent legislation, such as the Sarbanes-Oxley Act, grant protection to employees who voluntarily report wrongdoing, and it penalizes companies being investigated for illegal practices. These new penalties have made many corporations wary of trusting their employees to perform legitimate whistleblowing actions. Fortunately, a company with a well-constructed ethical system can deal with whistleblowers appropriately. Professor Ariane David, with the Graziadio Business Report, gives several steps for companies to take when planning for whistleblowing:

Companies should know what they really want. Many corporations can proclaim acceptance and encouragement of whistleblowing activity while managing ingrained company attitudes and systems that in fact block whistleblowers. When companies agree to encourage whistleblowing and fair standards, they should be sure that the proper communication channels are available for them to keep their word.

Official policies should make it clear that unethical practices are not tolerated. This makes it more likely that employees, when confronted with wrongdoing, will take steps to solve the problem within the company rather than seeking outside authority. The company should have steps in place to thoroughly investigate and remedy any report of unethical behavior.

Companies should walk their walk, and truly protect whistleblowers from any kind of retaliation. The way in which companies carry out their ethical standard policies is just as important as creating the standards in the first place.

Companies should reward whistleblowers who report illegal activity in a timely and responsible fashion.

When whistleblowing occurs, companies should stick to their policy of response, following their own steps strictly. They should listen carefully to employees and respond immediately to the situation.

RETALIATION

One of the main issues that arises from whistleblowing is retaliation, or further unethical activity on the part of the company toward the whistleblower. Retaliation usually falls into four different categories: nullification, isolation, defamation, and expulsion. Nullification occurs when a manager attempts to block the whistleblower's report through intimidation or control of communication channels. Isolation is the act of removing any information or resources from the employee that may lead to proof of illegal activity. A company may also try to publicly degrade the whistle-blower's character, sanity, or reputation, a process known as defamation. Other companies may attempt to push the employee out of the organization, through either reassignment or termination, an activity called expulsion.

Current laws regarding retaliation are complex, but give guilty companies very heavy penalties. Usually, a company inspected for illegal retaliation is forced to pay for the inspection, the legal costs for the employee, and any settlement that may be given as a result of the ruling.

Whistleblowing

Pollution A to Z
COPYRIGHT 2004 The Gale Group Inc.

Whistleblowing

Employees are the eyes and ears of environmental protection. They bury waste, operate incinerators, and witness the discharge of pollutants into the environment. However, employees who "blow the whistle" and report environmental wrongdoing are often subject to harassment, dismissal, and blacklisting.

In 1972 as part of the Federal Water Pollution Control Act, Congress recognized the critical role workers play in ensuring the enforcement of environmental laws and enacted the first environmental whistleblower law. Retaliating against environmental whistleblowers was made illegal and the victims of such misconduct finally benefitted from a government remedy at the federal level. By 1980 Congress passed six other environmental whistleblowers laws, protecting employees who blow the whistle on violations of the Toxic Substances, Safe Drinking Water, Solid Waste Disposal, Clean Air, Atomic Energy, and Comprehensive Environmental Response (Superfund) Acts.

Nearly every American worker is protected under these laws. The types of employees who have successfully filed suit include high-level managers who exposed the dumping of raw sewage into rivers, quality-assurance inspectors who reported nuclear safety violations, federal EPA scientists who published papers documenting flaws in risk assessments, and state inspectors who blew the whistle on a school built on a toxic waste dump. In each case the public was able to learn about and prevent significant threats to the environment and public health.

The federal environmental protection laws offer a remedy to the victims of retaliation. The employee initiates the process by filing a complaint with the U.S. Department of Labor (DOL) within thirty days of learning of the discriminatory action. The Occupational Safety and Health Administration (OSHA) investigates the complaint, and the whistleblower is entitled to a full evidentiary hearing before the DOL. If the whistleblower wins, that individual is entitled to reinstatement, back pay, attorney fees, damages for loss of reputation, and emotional distress. Under the Toxic Substances and Safe Drinking Water laws, whistleblowers may also be awarded punitive damages.

Although hundreds of employees have obtained relief under these laws (including some multimillion-dollar judgments), whistleblower cases are hard fought, and many environmental whistleblowers with valid cases lose in court. Some cannot afford attorneys experienced in this special area of the law, whereas others miss the thirty-day statute of limitations for filing complaints. Many whistleblowers are overwhelmed by the personal crises they must face after losing their jobs.

Environmental whistleblowers have also received significant support outside the legal system. For example, press coverage of Karen Silkwood's whistleblowing in the early 1970s called attention to the hazards of nuclear power plants. Additionally, public interest groups, such as the National Whistleblowers Center and Public Employees for Professional Responsibility, provide resources and assistance to environmental whistleblowers.

see also
Activism;
Laws and Regulations, International;
Laws and Regulations, United States

whistle-blowing

The Columbia Encyclopedia, 6th ed.

Copyright The Columbia University Press

whistle-blowing, exposure of fraud and abuse by an employee. The federal law that legitimated the concept of the whistle-blower, the False Claims Act (1863, revised 1986), was created to combat fraud by suppliers to the federal government during the Civil War. Under the act, whistle-blowers can receive a percentage of the money recovered or damages won by the government in fraud cases they expose. The act also protects whistle-blowers from wrongful dismissal, allowing for reinstatement with seniority, double back pay, interest on back pay, compensation for discriminatory treatment, and reasonable legal fees. Federal legislation in 1978 barred reprisals against those who exposed government corruption. Harassment and dismissal of and the revelation of widespread waste and fraud in defense contracting led Congress to strengthen the position of whistle-blowers in 1989. Many states also have employment laws that deal with discriminatory treatment of whistle-blowers.

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